GateHouse: Supreme Court weakens Fourth Amendment

Matthew T. Mangino
GateHouse News Service
March 7, 2014
One of the bedrock principles of the U.S. Constitution is that a person should be secure from unlawful governmental intrusions into the home. These protections were painstakingly established in response to the unfettered authority of British officials to search the homes of American colonists.
American courts have long acknowledged that the occupant of a home has a reasonable expectation of privacy within the walls of that home and, at times, even directly outside those walls.
Absent consent of the home owner, a lawful search warrant, or some exigent circumstance, the Fourth Amendment has steadfastly prohibited the police from entering a private residence — until now.
Last month, the U.S. Supreme Court ruled in a Los Angeles case that a homeowner who clearly and unequivocally denied access to police who were at his doorstep, may nonetheless have his home searched after he is arrested and removed and another occupant of the premises consents to the search.
The justices declined to extend a prior ruling denying entry to police when the occupants disagree about letting police in to search and both are present. In 2006, the U.S. Supreme Court decided Georgia v. Randolph. At issue was a domestic violence investigation where a suspect refused to let the police search his home while his wife authorized the search.
The police went in anyway and searched the home. The Supreme Court ruled, “A physically present inhabitant’s express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant.”
This time around, the facts changed and so did the decision. Los Angeles police were investigating a robbery when they came to the door of Walter Fernandez. He strongly objected to the police entering his apartment before he was arrested and taken away. After his removal his girlfriend permitted police to search their shared residence.
Justice Samuel Alito ruled that Fernandez may not object to a search when he is no longer at home. "We therefore hold that an occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason," Alito said.
"A warrantless consent search is reasonable and thus consistent with the Fourth Amendment irrespective of the availability of a warrant," he said in the case aptly entitled Fernandez vs. California. “Even with modern technological advances, the warrant procedure imposes burdens on the officers who wish to search [and] the magistrate who must review the warrant application."
The Court’s rationale goes something like this: In order to relieve the burden on police to get a warrant to search a home — a procedure that is extremely intrusive for any homeowner — the Supreme Court has acquiesced to an even greater intrusion on the homeowner — an arrest. Once the arrest is effectuated and the homeowner removed, the need for a warrant is obviated if there is someone present to let the police inside.
Last November, when this case was argued before the Supreme Court, Sanford law professor Jeffrey Fisher pointed out the misplaced reliance on the “burden” police endure to get a search warrant, "In Los Angeles County, it takes 15 minutes on average to get a warrant."
Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan dissented to the Fernandez decision. The three accused the majority of weakening the Fourth Amendment and granting the police too much latitude, reported the Los Angeles Times.
“Instead of adhering to the warrant requirement,” Ginsburg wrote, “today’s decision tells the police they may dodge it, nevermind ample time to secure the approval of a neutral magistrate.”

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” is due out this summer. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.


Visit the Column